Marshall’s HB 1160 would prevent agencies and employees at all levels of Virginia’s state and local governments from assisting federal authorities in the unlimited detention of United States citizens without charges or court hearing merely on suspicion of involvement in terrorist activities.

Obscure sections of the National Defense Authorization Act of 2012 (NDAA), signed into law by President Obama in late December, permits such unlimited detentions by United States military forces and federal law enforcement agencies.

Marshall contends that the NDAA authority deprives United States citizens of their rights under the United States and Virginia constitutions.

HB 1160 was passed by overwhelming bipartisan majorities in both houses of the Virginia General Assembly and is on McDonnell’s desk awaiting his signature. The governor is reported to have reservations about the bill.

The extensive memorandum was prepared for Marshall by attorney Herbert W. Titus, a former law school professor. Currently, Titus is “of counsel” with the Vienna, Va., law firm of William J. Olson, former chairman of the Fairfax County Republican Party. Olson’s firm specializes in constitutional law.

The Titus memorandum notes that “a potential additional complication” is that McDonnell, by Obama appointment, serves on a bipartisan Council of Governors (COG) formed in 2010 to assist federal authorities “on matters related to the National Guard and civil support missions.” COG’s duties include sharing information and advice relating to “homeland defense” and “synchronization and integration of State and Federal military activities within the United States.”

“Since the governor’s oath includes upholding the Constitutions of both the United
States and the Commonwealth,” Titus wrote in his memorandum, “and since both documents secure to the people the rights to a speedy and public trial, confrontation of witnesses, jury trial, and due process of law, it seems reasonable to expect that the governor will sign H.B. 1160. In so doing, he would fulfill the historic role of the States as being guardians of the people from usurpations of authority from the central government.”

The memorandum contends McDonnell “certainly has the authority to make his own assessment of the federal statute’s constitutionality now, without having to wait for a judicial decision after some person is denied the very rights that the constitution was designed to protect.”

“Thus,” the memorandum concludes, “it would appear that the only reason why the governor reasonably would veto H.B. 1160 would be that he believes that NDAA is constitutional – and we certainly trust that is not the case.”

"A wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned."